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Tuesday, November 30, 2010

Continuing issues of redactions of the judicial records in the Rosetta Stone trademark appeal

by Paul Alan Levy

Last month, I discussed the appellate brief filed by Rosetta Stone in its appeal from a trial court’s dismissal of its trademark lawsuit over Google’s practice of allowing advertisers to pay for ads directed to Google users who express an interest in trademarked terms. The redactions were not based on any objective determination of the need for secrecy, but instead on unilateral stamping of discovery materials as “confidential” coupled with the parties’ consent to allow such restriction son public access because neither had any interest in contesting even the flimsiest of the other side’s claims of need for secrecy. Public Citizen told the parties that, unless the brief were filed in unredacted form, it would seek leave to intervene to seek unsealing.

The parties agreed to seek unsealing; the Court of Appeals approved their joint motion; and Rosetta Stone posted its unredacted brief yesterday. I have posted the unredacted brief here, with lines around the portions that were formerly redacted.

Regrettably, Rosetta Stone took its sweet time filing its unredacted brief – although the task could not have required more than fifteen minutes’ work — with the result that those of us who contemplate filing amicus briefs in support of Google’s position have only a week to write our briefs in light of the real facts of the case. So part of our reason for seeking unsealing was unsuccessful, although thankfully the full brief will now be available so that all can fully understand Rosetta Stone's arguments and the eventual Fourth Circuit decision.

What is truly remarkable about the material in the brief is how little justification I can see for redaction. Yes, some of the facts may be embarrassing to one side or the other, but what was the legal justification for each redaction?

We may be in a position to demand an answer to those questions, at least indirectly, because Google, too, has redacted some of the factual materials in its brief, apparently based on the same district order allowing unilateral stamping of discovery materials. Although the redactions in Google's appellate brief are not nearly so extensive as the former redactions in Rosetta Stone's brief, Public Citizen has again asked the parties to allow this brief to be filed unredacted, and if this request is not granted, we intend to move for leave to intervene and to unseal. We also intend to seek the unsealing of the Joint Appendix, which included those parts of the record that each side believes are most pertinent to deciding the outcome of the appeal.

We will point to the formerly redacted portions of Rosetta Stone’s opening brief and ask whether there is any reason to believe that the redactions in Google’s brief and in the Joint Appendix have any more basis in law than the redactions that formerly appeared in Rosetta Stone’s brief. In requesting oral argument, Rosetta Stone told the Court of Appeals that the voluminous factual record is one of the reasons why an oral presentation is needed to ensure a proper resolution of the appeal (see the last page here). For the same reason, the public needs to be able to see the Joint Appendix in order to understand the parties’ arguments and the Fourth Circuit’s decision.

In the meantime, the courts of appeals need to develop better procedures to force the parties to think through their redaction decisions before briefs are filed. Only in that manner can third parties have a fair chance to influence the outcome of appeals that have broad public significance.